Thursday, July 10, 2008

DRAFTAGREEMENT BETWEEN THE GOVERNMENT OF INDIA AND THE INTERNATIONAL ATOMIC ENERGY AGENCY FOR THE APPLICATION OF SAFEGUARDS TO CIVILIAN NUCLEAR FACILITIES

Page 2

• India will place its civilian nuclear facilities under Agency safeguards so as to facilitate full civil nuclear cooperation between India and Member States of the Agency and to provide assurance against withdrawal of safeguarded nuclear material from civilian use at any time;

An essential basis of India's concurrence to accept Agency safeguards under an India-specific safeguards agreement (hereinafter referred to as "this Agreement") is the conclusion of international cooperation arrangements creating the necessary conditions for India to obtain access to the international fuel market, including reliable, uninterrupted and continuous access to fuel supplies from companies in several nations, as well as support for an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India's reactors; and

India may take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies;

Page 20

X. FINAL CLAUSES

107. India and the Agency shall, at the request of either of them, consult about amending this Agreement.
108. This Agreement shall enter into force on the date on which the Agency receives from India written notification that India's statutory and/or constitutional requirements for entry into force have been met.
109. This Agreement shall remain in force until, in accordance with its provisions, safeguards have been terminated on all items subject to this Agreement, or until terminated by mutual agreement of the parties to this Agreement.

II.

CNDP Condemns Intransigence of Indian Prime Minister on the Deplorable Indo-US Nuclear Deal
The Coalition for Nuclear Disarmament and Peace (CNDP)

- a national coalition of organisations and individuals for nuclear disarmament - notes with great concern the Indian Prime Minister's obstinate insistence on going ahead with clinching of the India-specific agreement with the IAEA. This will be a vital intermediate step towards operationalising the Indo-US nuclear deal in the teeth of strong opposition within India. The Prime Minister wants to go ahead, trampling upon democratic norms and values, regardless
of all rational considerations, let alone ethical ones.

The CNDP reiterates its consistent and firm opposition to the deal on the following grounds as pointed out repeatedly in the past. The deal severely undermines the prospects of global nuclear disarmament by (selectively and arbitrarily) "legitimising" India's nuclear status and, in the process, the possession of nuclear weapons by the existing nuclear weapon states

both "recognised" and "unrecognised" - and also the aspirations of other actual and potential aspirants.The deal will promote the cause of nuclear militarism and nuclear-weapon build-up in India against the interests of peace and the people in the region. It will further intensify the arms race between India and Pakistan

both nuclear and conventional. Pakistan, in fact, made a strong plea for a similar deal. And the brusque refusal by the US,

instead of dissuading it, would only further inflame its passions and thereby turn the nuclear mess in South Asia all the more dangerous. This deal is also an utterly reprehensible move to bring India closer into the US orbit as a regional ally to facilitate the execution of its global imperial ambitions. Furthermore, the consequent shift in focus in favour of highly expensive nuclear power, if the deal comes into operation, will significantly distort India's energy options at the cost of efforts to develop environmentally benign and renewable sources of energy.

The CNDP, on this occasion, calls upon the Indian people to rise in protest against the intransigence of the Prime Minister and voice their strongest opposition to the undemocratic move to impose the deplorable deal on the country.

The 'Deal' as and when, and if at all, comes through will grievously undermine the current global regime of nuclear nonproliferation, as it is meant to make a unique exception in case India, in gross violation of the underlying principles of the NPT, and thereby also the prospects of global nuclear disarmament. The fact that Pakistan has been brusquely refused a similar deal by the US in spite of persistent clamouring and Iran is being demonstratively coerced to desist from developing its own nuclear fuel cycle technology, integral to nuclear power production allowed and encouraged under the Article IV of the NPT, further brings out graphically the abominable discriminatory nature of the 'Deal'. Moreover, the lesson that one would tend to learn is that if one can weather the initial storms of international censures after breaking the nonproliferation taboo, things would normalise in a while. One may even get rewarded in the process. This is sure to trigger off stepped up vertical and horizontal proliferations. Moreover, by enabling India to import fuel, natural or enriched uranium, from abroad, the 'Deal' would make it possible for India to use the indigenously produced uranium exclusively for Bombmaking. This possible escalation in its fissile material production capacity is, in all likelihood, push Pakistan further to nuclearise even at a great cost, and thereby aggravate tensions and accelerate arms race in the region with spinechilling consequences.

It'd also further cement the growing (unequal) strategic ties between the US and India and thereby would add momentum to the US project for unfettered global dominance and Indian craze to emerge as a global power basking in the reflected glory of the global headman. It'd just not only undermine India's position as a founding and leading member of the NAM, it'd also pose a very serious challenge to the NAM and its objectives in terms of radically raised level of US domination on the global scene. India's rather meek submission to highly deplorable and dangerous threats issued and postures adopted by the Bush regime in relation to Iran and its nuclear programme instead of trying to find a just and fair solution in terms of having a Weapons of Mass Destruction free MiddleEast including Israel is a clear and extremely worrisome pointer. India's keenness to join the Proliferation Security Initiative (PSI) initiated by the US to interdict any vessel in international waters suspected of carrying (unauthorised!) nuclear materials, in gross violation of all international laws and also the Ballistic Missile Defence (BMD) programme of the US are another two highly disturbing indicators. India's growing closeness with Israel, the frontline state of the US in the Middle East, would also pick up further pace in the process.

This 'Deal' would obviously distort India's energy options by diverting scarce resources to developments of resource guzzling, intrinsically hazardous and potentially catastrophic, nuclear power at the cost of ecologically benign renewable sources of energy. This would, furthermore, provide a strong boost to the nuclear industry worldwide, particularly the potential suppliers from the US. And that's precisely why the business lobby in the US is working overtime to get
the 'Deal' clinched. The recent visit by the Russian President Vladimir Putin to India as the guest of honour at the Republic Day event and his public commitment to supply additional nuclear reactors to India and work for the safe passage of the 'Deal' through the NSG underscores the convergence of interests of the nuclear power lobbies worldwide as regards the 'Deal' and the new market that it is promising to open up.

Unquote

[Excerpted from the Resolution adopted at the International Seminar on this issue held by the CNDP in Mumbai in March 2007 in collaboration with the Afro-Asian Peoples' Solidarity Organisation (AAPSO), headquartered in Cairo, and Vikas Adhyayn Kendra (VAK), Mumbai with the active and moral support of many others.]

India's civil nuclear agreement with the United States may have cleared a key hurdle in New Delhi this week, but it appears unlikely to win final approval in the U.S. Congress this year, raising the possibility that India could begin nuclear trade with other countries even without the Bush administration's signature deal, according to administration officials and congressional aides.

Indian Prime Minister Manmohan Singh has struggled to keep his coalition government intact over the controversial deal to give New Delhi access to U.S. nuclear technology for the first time since it conducted a nuclear test in 1974. This week, he secured an agreement with the Samajwadi Party to back the deal, giving him enough support to retain his majority even as the Communists bolted over fears that the pact would infringe on India's sovereignty.

But the legislation passed in 2006 -- the so-called Hyde Act -- that gave preliminary approval to the U.S.-India agreement, requires that Congress be in 30 days of continuous session to consider it. Congressional aides said that clock can begin to tick only once India clears two more hurdles -- completing an agreement with the International Atomic Energy Agency, and securing approval from the 45 nations that form the Nuclear Suppliers Group, which governs trade in reactors and uranium. Because of the long August recess, less than 40 days are left in the session before Congress adjourns on Sept. 26.

"At this point, both [the IAEA and NSG actions] have to take place in the next couple of weeks" for the deal to be considered by Congress, said Lynne Weil, spokeswoman for the House Foreign Affairs Committee. But the IAEA Board of Governors is not expected to take up the matter until August, whereas the NSG may take several months to reach a consensus.

House Speaker Nancy Pelosi (D-Calif.) has repeatedly insisted there will be no lame-duck session after the Nov. 4 elections. There would be little incentive for the Democratic majority to hold a lame-duck session if, as expected, the Democrats significantly gain seats.

President Bush's agreement with India, considered a key part of his foreign policy legacy, is designed to solidify Washington's relationship with a fast-emerging economic power. Bush and Singh agreed to the pact in July 2005, but it has faced repeated delays and opposition in both countries.

Now, with the near impossibility of congressional passage by year-end, officials and experts have begun to focus on the possibility that other countries -- such as France and Russia -- would rush in to make nuclear sales to India while U.S. companies still face legal restrictions.

"India doesn't need the U.S. deal at all" once the NSG grants approval, said Sharon Squassoni, senior associate at the Carnegie Endowment for International Peace. "It was a fatal flaw in the logic of the U.S. Congress."

A State Department official, speaking on the condition of anonymity because he was discussing congressional strategy, agreed. "I don't believe there is anything to prevent them from doing that, if we don't ratify it," he said, noting the irony of the United States not profiting from a deal it set in motion.

But he suggested the administration would use that awkward situation to pressure Congress not to thwart potential business opportunities for American companies. "It is the hidden force of this agreement," the official said. "It is U.S. business that sees an opportunity."

Ever since the deal was struck, the administration has performed a balancing act between adhering to the letter of U.S. nonproliferation law and assuaging Indian concerns that it was not being treated like a true nuclear power. This year, when the administration answered nearly 50 questions posed by Congress about a separate implementing agreement negotiated with India, it took the unusual step of insisting the answers remain secret for fear of torpedoing the agreement.

India, which is running short of uranium needed to fuel its reactors, is especially eager to win "clean" agreements with the IAEA and the NSG that would not result in fuel cutoffs if it decides to resume testing nuclear weapons.

Sen. John McCain, the presumptive Republican presidential nominee, is a strong supporter of the agreement, but Sen. Barack Obama, his Democratic rival, is more skeptical. During the congressional debate on the Hyde Act, Obama inserted language in the bill limiting the amount of nuclear fuel supplied to India from the United States to deter nuclear testing.

Quote
A very interesting aspect, which has, rather surprisingly, not attracted the attention of the media as yet, is that in the event of the 'Deal' passing through the NSG barrier but floundering at the US Congress, for whatever reasons, the other 44 members of the NSG would be able to have nuclear commerce with
India as per its amended rules, but the US will not.

It is precisely this scenario the Russian, French, Canadian players must at times be just fantasising about.
Unquote]

Government nod contradicts Pranab's assurance that the process will begin only after trust vote

Restriction on circulating text only for IAEA

New Delhi: Contrary to External Affairs Minister Pranab Mukherjee's assurance that the process of finalising India's safeguards agreement with the International Atomic Energy Agency would begin only after the United Progressive Alliance won a vote of confidence in Parliament, the government has given the go-ahead for the draft text to be forwarded to the Agency's Board of Governors.

In a statement issued on Wednesday evening, the IAEA Secretariat said that "at the request of the government of India," the draft safeguards agreement had been circulated to the 35-nation Board "for its consideration."

It added that the Chairman of the Board "is consulting with Board members to agree on a date for a meeting when the Agreement would be considered" and that the text of the draft was not public.

The Board is scheduled to meet on July 28 to discuss an unrelated matter, but an attempt could be made to make the India draft an agenda item for that meeting.

At a press conference on Tuesday, Mr. Mukherjee was asked when the government intended to send the agreement to the IAEA Board. He replied this would be done only after the government demonstrated it had majority support in the Lok Sabha.

IAEA sources in Vienna told The Hindu that although safeguards agreements normally circulated for 45 days before being taken up by the Board for approval, the Chairman — currently Chilean Ambassador Milenko E. Skoknic — was consulting with member- states to see if this process could be accelerated. "Because both the U.S. and India are pushing, this can be speeded up. But at the same time, there is concern that the agreement not be rammed down the throat of states which have reservations," the sources said.

The IAEA sources also refuted Mr. Mukherjee's claim that Agency rules prevented India from sharing its draft safeguards agreement with anybody it wants.

The Secretariat is obliged to follow a certain procedure for circulating documents such as a safeguards agreement to the Board of Governors, the sources said, but these procedures do not apply to the member state which is party to that agreement.

Asked pointedly whether Mr. Mukherjee was correct in saying India could not circulate the safeguards text to "third parties without going through laid down procedures of the IAEA," a senior IAEA official said, "I don't think this is something we could restrict India from doing."

"As far as the Secretariat is concerned, we are not in the position of making safeguards agreements available for public distribution. We only put them up to the Board members. What each member does with them is up to it," the official said, adding, "I don't think India is bound by this procedure."

In their statement announcing withdrawal of support to the United Progressive Alliance, the Left parties had cited the refusal of the government to share the safeguards text with them as a major breach of understanding.

Replying to them on Tuesday, Mr. Mukherjee had referred to the safeguards text as a "privileged document held in confidence between GOI and the IAEA Secretariat." If the Left leaders wanted the full text, they "would have to join the government in order to access [it]," he said. In a press conference the same day, he described the safeguards agreement as a "confidential document" and claimed the IAEA's rules stipulated that "until the text was shown to the Board it can't be shown to others."

The IAEA official said the rule cited by the Minister was correct. But it applied only to the IAEA Secretariat.

The IAEA Statute contains no reference to tying a member state to a set procedure for the circulation of documents. The only reference to confidentiality of information is in Article VII, which deals with the obligations of the IAEA staff. In all other documents such as safeguards agreements and Additional Protocols, the obligation to maintain confidentiality applies to the IAEA and not to the signatory state.

VI.

http://www.hindu.com/2008/07/10/stories/2008071055611100.htm

Hindu July 10, 2008

Left queries on safeguards thrust spotlight on 'corrective measures'

Siddharth Varadarajan

The government feels vagueness keeps international critics at bay.

Following the formal withdrawal of Left support to the United Progressive Alliance, the Communist Party of India (Marxist) and its three partners have issued a statement challenging the government's decision to keep the text of the safeguards agreement negotiated with the International Atomic Energy Agency (IAEA) a "secret."

Fearing a disconnect between the government's assurances and the actual text, the Left said it had five pointed concerns about the agreement that the UPA had not addressed. These were: (1) In case the U.S. or other countries in the NSG renege on fuel supply assurances for imported reactors, will we have the ability to withdraw these reactors from IAEA safeguards? (2) If U.S./NSG countries renege on fuel supply assurances, can we withdraw our indigenous civilian reactors from IAEA safeguards? (3) If we have to bring nuclear fuel from the non-safeguarded part of our nuclear programme for these reactors in case of fuel supply assurances not being fulfilled, will we have the ability to take (the spent fuel) back again? (4) What are the corrective steps that India can take if fuel supplies are interrupted by the U.S./NSG countries? (5) What are the conditions that India will have to fulfil if the corrective steps are to be put into operation?

Though the Left has raised five separate queries, they all revolve around the one big imponderable that has animated both the United States government and the nuclear deal's non-proliferation critics internationally ever since India came up with its separation plan on March 2, 2006: Just what exactly is meant by the phrase "corrective measures"? These are the measures India says it may take "to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies." The phrase, which appears in paragaraph 15(c) of the Separation Plan, was a condition the Indian negotiators tagged on to the list of fuel supply assurances they said India needed in order to accept the American demand to "place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA."

Both during the hard-fought talks on March 1 and 2, 2006, and subsequently, in the negotiations the two sides held on the 123 agreement, the Indian team constantly parried all American attempts to spell out or define just what was meant by "corrective measures." Egged on by the American non-proliferation lobby, U.S. officials wanted to know, for example, whether corrective measures would include the withdrawal of a civilian facility from safeguards. Indian officials stonewalled, pointing out that since the eventuality of corrective measures could only arise if the continuous operation of India's civilian
nuclear reactors was interrupted, it was essential that fuel arrangements be as foolproof and watertight as possible.

When, during the 123 negotiations, the Indian team found the U.S. side backsliding on the commitments contained in paragraph 15 of the Separation Plan, a major fight ensued. The result was that the entire paragraph was incorporated into the 123 agreement by 'cut and paste.'

Though declining to provide details, sources familiar with the draft safeguards agreement said the compromise package contained in paragraph 15 of the Separation Plan had been "fully protected" in the text India has negotiated with the IAEA secretariat and that the country had a range of rights it could invoke should the need arise.

The truth of this assertion can only be established once the safeguards agreement is made public but even then, it is unlikely that the text will shed any fresh light on the Left's specific questions. Nor is the UPA likely to be more forthcoming than it has been so far.

For the government, the dilemma is a difficult one. The vagueness of language has helped India keep the nuclear deal's critics abroad guessing, thereby blunting one of their main allegations that the nuclear agreement represents a "proliferation risk." Critics overseas are arguing that "corrective measures" means India reserves the right to withdraw safeguarded facilities from international inspection at some point in the future and may indeed do so once it has imported enough nuclear fuel to make up its domestic shortfall.

But in the politically charged domestic arena, where the government finds itself accused of compromising the national interest, the same opaqueness of phraseology is now inviting further suspicion. Were the Prime Minister to fend off his domestic critics by providing the assurances they seek, chances are the level of international opposition to the nuclear agreement would increase dramatically. Silence, however, is not an option either, especially since the government has not been entirely convincing in its arguments with the Left and other critics on other aspects of the nuclear deal such as the impact it might
have and has already had on the conduct of the country's foreign and defence policy.

By citing the precedent of Tarapur, which was left in the lurch after the Americans cut off fuel, the CPI(M) and its allies have pointed to a potential vulnerability that the Department of Atomic Energy and government insist they have sought to protect the country from. Imported reactors without the fuel to run them would be little more than (radioactive) white elephants. But whichever way one defines "corrective measures," it is hard to see how these would lead to the flow of fuel for a safeguarded reactor whose supplies have been cut off.

Fuel supplies may be withheld if India were to test another nuclear weapon, especially if the present international moratorium on testing continues to hold or actually gets converted into all the major nuclear weapon states signing and ratifying the Comprehensive Test Ban Treaty. Under such a situation, the only insurance India can hope to rely on would be the strategic stockpile of fuel that it would presumably have built up prior to any resumption of testing.

Of course, fuel can be cut off for other reasons too. Again, a general stockpile would provide some comfort, though the inventory carrying cost and safety implications of holding nuclear fuel reserves would need to be taken into account. At the same time, the best guarantee for the uninterrupted running of safeguarded reactors would be the emergence of an international political environment in which India, as an important power, could have full confidence. This, in turn, would mean pursuing a foreign policy that privileges polycentrism rather than unipolarity, a point the government's critics accuse it of forgetting.
'Corrective' measures, in the final analysis, are less important than 'pre-emptive' ones. Somewhere in the debate over text, the wider context of politics should not be lost sight of.